■'I' 


DECISION  OF  THE 
SECR.  OF  THE 

INTERIOR  ON  THE 

N.  PACIFIC  RAILROAD 

CO.  WITH  RESPECT 

TO  ITS  LAND  GRANT. 


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DEOISJON 


SECRETARY  OF. THE  INTERIOR 


ON  THE  STATUS  OF  THE 


NORTHERN  PACIFIC  EAILROAD 
COMPANY 


WriH  RESPECT  TO  ITS  LAND  GEANT. 


JUNE  11,   1879. 


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AH 


The  Northern  Pacific  Railroad  Company  on  the 
13th  of  May,  1879,  presented  to  the  Secretary  of  the 
Interior,  for  approval,  a  map  of  an  amended  Hne  of 
the  Branch  Road  in  Washington  Territory,  and  at  the 
same  time  presented  for  liling  and  record  in  the  De- 
partment, the  Mortgage  on  the  Missouri  Division  of 
the  Main  Line,  extending  from  the  Missouri  River,  in 
Dakota,  to  the  Yellowstone  River,  in  Montana. 

In  accordance  with  the  practice  of  the  Department, 
tlie  Secretary  referred  the  matter  of  change  of  line  to 
the  Commissioner  of  the  General  Land  Office,  for  an 
expression  of  his  views  as  to  w^hether  any  reason  ex- 
isted why  the  request  of  the  Company  should  not 
be  granted. 

The  Secretary  of  the  Interior  asked  and  obtained 
the  advice  of  the  Attorney  General  on  the  questions 
raised  by  the  Commissioner,  and  the  result  was  the 
following  decision. 


Department  of  the  Interior, 

Washington,  June   nth,  1879. 

Sir  : — I  have  received  your  letter  of  the  2  ist  ultii^o, 
returning  the  letter  of  George  Gray,  Esq.,  Attorne^^ 
of  the  Northern  Pacific  Railroad  Company,  dated 
New  York  the  loth  ultimo,  presenting  a  map  of 
amended  location  of  the  general  route  of  the  branch 
line  of  said  railroad,  in  Washington  Territory,  and 
requesting  that  it  be  accepted  and  approved  by  this 
Department. 

The  letter  of  Mr.  Gray  was  referred  to  you  for  i 
expression  of  your  views  as  to  whether  any  reaso  . 
existed  why  his  request  should  not  be  granted. 

In  returning  the   letter,  and  map   accompanying  ii 
you  call  my  attention  to  two  questions,  which  I  under 
stand  you  deem  material  in  determining  whether  said 
company  has  the  right  now  to  file  this  map,  and  have 
the  same  approved,  viz.  : 

"  I.  Has  the  grant  to  the  company  lapsed  by  reasc >n 
of  the  failure  of  the  company  to  perform  certain  acts 
within  the  time  specified  in  the  granting  statutes  ? 

''2.  If  it  has  so  lapsed,  can  the  Department  recoi^^-- 
nize  any  acts  by  the  company  looking  to  the  initiation 
of  new  rights,  or  the  enlargement  of  old  ones  ?" 

You  further  state  :  "  Aside  from  those  possible  ob- 
jections no  new  reasons  are  known  why  the  map 
should  not  be  accepted  and  the  previous  instructions 
by  the  Department  carried  into  effect.  On  the  con- 
trary, I  am  of  opinion  that  the  best  interest  of  the 
public  requires  that  the  desired  change  should  be 
allowed.  At  present  a  very  large  body  of  land  is  with- 
held from  settlement  and  entry,  which  by  the  amended 
line  would  be  released  and  restored  to  the  govern- 
ment, whilst  the  tract  that  would  be  required  to  be 
withdrawn  is  not  so  large  by  some  four  millions  acres." 


The  previous  Instructions  referred  to  are  those 
given  by  my  predecessor,  dated  November  24th,  1876, 
in  approving  the  map  of  amended  location  in  Wash- 
ington Territory,  then  presented  by  said  company. 

The  first  question  suggested  by  you  requires  an 
examination  of  the  Act  of  Congress  making  the  grant 
to  said  company,  and  the  acts  supplementary  thereof. 

By  the  8th  section  of  the  Act  of  July  2,  1864  (13 
Statutes,  370),  it  is  provided  : 

''  Sec.  8.  ^nd  be  it  further  enacted,  That  each  and 
every  grant,  right  and  privilege  herein  are  so  made 
and  given  to,  and  accepted  by,  said  Northern  Pacific 
Railroad  Company,  upon  and  subject  to  the  following 
conditions,  namely  :  That  the  said  company  shall 
commence  the  work  on  said  road  within  two  years 
from  the  approval  of  this  Act  by  the  President,  and 
shall  complete  not  less  than  fifty  miles  per  year  after 
the  second  year,  and  shall  construct,  equip,  furnish  and 
complete  the  whole  road  by  the  fourth  day  of  July, 
Anno  Domini,  eighteen  hundred  and  seventy-six." 

''  Sec.  9.  And  be  it  further  enacted,  That  the  Uni- 
ted States  make  the  several  conditional  grants  herein, 
and  that  the  said  Northern  Pacific  Railroad  Company 
accept  the  same,  upon  the  further  condition  that  if  the 
said  company  make  any  breach  of  the  conditions 
hereof,  and  allow  the  same  to  continue  for  upwards  of 
one  year,  then,  in  such  case,  at  any  time  hereafter, 
the  United  States,  by  its  Congress,  may  do  any  and 
all  acts  and  things  which  may  be  needful  and  neces- 
sary to  insure  a  speedy  completion  of  the  said  road." 

By  section  2  of  a  joint  resolution,  approved  May  7, 
1866  (14  Statutes,  355),  entitled  ''A  resolution  ex- 
tending the  time  for  the  completion  of  the  Union 
Pacific  Railway,  Eastern  Division  "  it  is  provided  : 


''  Sec.  2.  ^nd  be  it  further  resolved ^  That  the  time 
for  commencing  and  completing  the  Northern  Pacific 
Railroad,  and  all  its  several  sections,  is  extended  for 
the  term  of  two  years." 

By  a  joint  resolution,  approved  July  i,  1868  (i5 
Statutes,  255),  entitled,  ''Joint  Resolution  extending 
the  time  for  the  completion  of  the  Northern  Pacific 
Railroad,''  it  is  provided  : 

"  (3^  it  resolved  by  the  Senate  and  House  of  ^epre= 
sentatives  of  the  United  States  of  America,  in  Congress 
assembled  J  That  section  eight  of  an  Act  entitled  '  An 
Act  granting  lands  to  aid  in  the  construction  of  a  rail- 
road and  telegraph  line  from  Lake  Superior  to  Puget 
Sound,  on  the  Pacific  Coast,'  is  hereby  so  amended  as 
to  read  as  follows  :  *  That  each  and  every  grant,  right, 
and  privilege  herein,  are  so  made  and  given  to  and 
accepted  by  said  Northern  Pacific  Railroad  Company 
upon  and  subject  to  the  following  conditions,  namely: 
That  the  said  company  shall  commence  the  work  on 
said  road  within  two  years  from  and  after  the  second 
day  of  July,  eighteen  hundred  and  sixty-eight,  and 
shall  complete  not  less  than  one  hundred  miles  per 
year,  after  the  second  year  thereafter,  and  shall  con- 
struct, equip,  furnish  and  complete  the  whole  road  by 
the  fourth  day  of  July,  Anno  Domini,  eighteen  hun- 
dred and  seventy-seven.' '' 

Did  the  2d  section  of  the  joint  resolution  of  1866 
extend  the  time  originally  provided  for  the  commence- 
ment and  completion  of  said  road,  or  did  it  extend  the 
time  provided  in  sectijn  8  of  said  Act  as  amended  by 
the  joint  resolution  oi  ,V;l'^8  ? 

It  will  be  observed  that  the  joint  resolution  of  1868 
is  entitled,  ''Joint  Resolution  extending  the  time  tor 
the  completion  of  the  Northern  Pacific  Railroad."  If 
it  be  held  that  the  Act  of  1868  repealed  the  extension 


in  the  Act  of  1 866,  then  Instead  of  extending  the  time, 
it  shortened  the  time  one  year,  for  by  the  resolution 
of  1 866,  the  time  for  the  completion  of  the  road  would 
have  been  July  4,  1878.  Unless  there  is  a  clear 
repugnancy  between  statutes  in  pari  materia,  they 
are  to  be  construed  so  as  to  give  effect  to  each.  It  is 
also  a  well  settled  rule  that  statutes  are  not  repealed 
by  implication. 

Numerous  cases  might  be  cited  in  support  of  this 
rule. 

Can  the  Acts  above  cited  be  so  interpreted  as  to 
give  effect  to  each  ? 

It  will  be  noticed  that  the  amendment  of  the  Act  of 
1868  is  an  amendment  so  as  to  make  the  original 
Act  read  as  follows  :  "  That  each  and  every  grant, 
right  and  privilege  herein,  are  so  made  and  given  to 
and  accepted  by  said  Northern  Pacific  Railway  Com- 
pany,'' etc. 

In  the  case  of  The  Missouri,  Kansas  and  Texas  Rail- 
way Company  vs.  The  Kansas  Pacific  Railway  Com- 
pany, decided  at  the  last  term  of  the  Supreme  Court, 
the  court  say,  "  It  is  true  the  Act  of  1864,  enlarged 
the  grant  of  1862,  but  this  was  done  not  by  words  of 
a  new  and  additional  grant,  but  by  a  change  of  words 
in  the  original  Act,  substituting  for  those  there  used 
words  of  larger  import.  This  mode  was  evidently 
adopted  that  the  grant  might  be  treated  as  if  thus 
made  originally  ;  and  therefore,  as  against  the  United 
States,  the  tide  of  the  plaintiff  to  the  enlarged  quan- 
tity, with  the  exception  stated,  must  be  considered  as 
taking  effect  equally  with  the  title  of  the  less  quantity 
as  of  the  date  of  the  first  Act." 

Applying  the  rule  thus  announced,  it  must  be  held 
that  said  company  was  to  commence  work  on  said 
road  within  two   year's   from  the  second  day  of  July, 


1 868,  and  to  complete  the  same  on  or  before  the 
fourth  day  of  July,  1877  ;  and  that  such  must  be 
taken  as  the  terms  of  the  original  charter  to  said 
company. 

With  the  terms  of  the  charter  thus  fixed,  the  Joint 
Resolution  of  1866,  extends  the  time  for  the  comple- 
tion of  the  road  until  July  4,  1879. 

It  will  be  observed  also  that  this  Act,  unlike  most 

of  the  acts  making  grants  to  railroad  companies,  does 

not  provide  that  at  the  expiration  of  the  time  fixed 

for  the  completion  of  the  road  the  lands  granted  shall 

revert  to  the  United  States,, but  does  provide  ''  that  if 

the  said  company  make  any  breach  of  the  conditions 

hereof,  and  allow  the  same  to  continue  for  upwards  of 

one  year,   then,  in  such  case,  at  any  time  hereafter, 

the  United  States,  by  its  Congress,  may  do  any  and 

all  acts  and  things  which  may  be  needful  and  neces- 

1       sary  to  insure  a  speedy  completion  of  said  road."  (see 

\      9th  Section).     It  will  thus  be  seen  that  no  proceed- 

l     ings  can  be  taken,  even  byo  Congress,  to  declare  a 

\    forfeiture  of  this  grant,  if  breaches  thereof  have  oc- 

\  curred,  until   one  year  after  the  t^me  fixed  for   the 

\ completion  of  the  road,  viz  :  Jul}^  4,  1880. 

■    If  this    be  not  the  true  construction  of  the  various 

provisions  of  the  Acts  of  Congress  in  relation  to  this 

grant,  still,  under  the  rule  announced  by  the  Supreme 

Court  in    the  case  of  Schulenberg  vs.  Harriman  (21 

Wallace;44),  it  must  be  held  that  until  Congress  does 

take  some  steps  to  declare  a  forfeiture  of  said  grant, 

that  the  same   is  in  full  force  and  effect.     In  the  case 

cited  the  court  say  :  "  At  common  law  the  sovereign 

could  not  make  an  entry  in  person,  and  therefore,  an 

office  found  was  necessary  to  determine  the  estate, 

but,  as  said  by  this  court  in  a  late  case,  '  the  mode  of 

asserting  or  of  resuming  the  fcJi-feited  grant,  is  sub- 


ject  to  the  legislative  authority  of  the  Government. 
It  may  be  after  judicial  investigation,  or  by  taking 
possession  directly  under  t^e  authority  of  the  Govern- 
ment without  these  prelrminary  proceedings.'  In 
the  present  case  no  action  has  been  taken  either 
by  legislation  or  judicial  proceedings  to  enforce 
a  forfeiture  of  the  estate  granted  by  the  Acts  of  i856 
and  1864.  The  title  remains,  therefore,  in  the  State, 
as  completely  as  it  existed  on  the  day  when  the  title 
by  location  of  the  route  of  the  railroad  acquired  pre- 
cision and  became  attached  to  the  adjoining  alternate 
sections." 

I  am  not  advised  that  any  proceedings  have  been 
taken  to  declare  a  forfeiture  of  the  grant  to  this  com- 
pany, and  if  my  views  of  the  law  above  expressed 
are  correct,  the  time  has  not  yet  arrived  when  Con- 
gress could  take  any  proceedings  to  declare  such  a 
forfeiture  ;  but  in  either  event,  the  grant  to-day  must 
be  held  to  be  the  same  as  it  existed  on  the  day  when 
it  was  made  and  accepted  by  the  company. 

Your  second  question  being  predicated  upon  the 
first,  and  involved  therein,  is  unnecessary  to  answer.' 

The  grant  being  held  to  be  in  full  force  and  effect 
to-day,  I  can  perceive  of  no  reason  why  the  amended 
map  should  not  be  filed.  The  map  of  the  general 
route  originally  filed,  and  the  withdrawal  made  there- 
on, was  for  the  protection  of  the  company,  in  reserving 
the  tracts  of  land  included  therein  for  it,  if  the  road 
was  built  on  that  line.  It  was  not  a  map  of  definite" 
location  of  the  road,  and  hence  the  grant  did  not  at- 
tach to  specific  tracts  of  land. 

The  right  of  the  company  under  its  grant  only  at- 
taches to  specific  tracts  upon  the  definite  location  of 
its  road. 


8 

The  company,  by  its  attorney,  has  filed  with  me, 
and  the  same  is  herewith  transn.itted,  a  relinquish- 
ment of  all  its  right  anr*  Interest  in  any  of  the  lands 
first  withdrawn  on  the  l-.  <nch  route  in  Washington 
Territory. 

By  this  relinquishment,  as  stated  by  you,  a  very 
large  quantity  of  land  will  be  released  from  the  reser- 
vation, and  become  subject  to  disposal  under  the  laws 
of  the  United  States.  The  particular  route  upon 
which  the  branch  line  was  to  be  built  in  Washington 
Territory  was  not  specified  in  the  Act,  and  it  must, 
therefore,  be  considered  ^hat  Congress  intended  to 
leave  this  selection  of  the  route  to  the  company. 

The  company  after  considerable  difficulty,  has  finally 
selected  a  route  upon  which  it  deems  it  to  be  practica- 
ble to  build  the  road  pro^nded  for  by  Congress. 

,  The  map  of  amende'!  route  is  herewith  transmitted 
approved,  and  you  will  cause  the  lands  on  said  route 
within  the  limits  specified  In  the  granting  Act,  to  be 
withdrawn  for  the  benefit  of  said  company,  and  those 
on  the  route  heretofore  selected  to  be  restored. 

Hi 

No  withdrawal  having  been  made  on  the  route  in- 
dicated on  the  map  filed  with  and  approved  by  my 
predecessor,  November  -^4,  1876,  no  further  action 
in  relation  to  said  map  and  route  will  be  taken. 

The  rights  of  settlers  upon  the  lands  included  with- 
in the  limits  of  the  withdrawal  to  be  made  under  this 
amended  route,  must  be  protected,  if  settlements  and 
entries  be  made  before  the  receipt  of  notice  of  with- 
drawal at  the  local  office. 

Very  respectfully, 

C.  SCHURZ, 

Secretary, 

The  Commissioner  of  the  General  Land  Office. 


.>««&v-:jiJ 


